Tuesday, June 22, 2010

A Word with a Lawyer

This is not to be taken as legal advice.

In the past, Summits have involved clashes between protesters and police, some because of violence by the protesters and some for other reasons.Since these incidents did not happen in Canada, I asked a lawyer about the laws and regulations within Canada and what powers the police do and do not have.This is NOT to be taken as legal advice.If you find yourself under arrest, hire/call a lawyer.There are plenty that will be available all week.

I spoke to a Jeff Hershberg, a lawyer from Pinkofskys.Specifically, I wanted to know about identification, and when/where you need to produce it, and when you do not have to.Below is my correspondence with Mr. Hershberg:

BD: I’ve read some stories and seen some video of people being detained by police for not handing over government identification. They freely gave their name and address, but not identification. They were detained, searched, the police read the identification, and then released them. Now, I’ve also heard that unless driving (or sometimes riding a bike) you do not have to hand over identification, but you must identify yourself when asked. I’ve also heard the opposite that you must hand over identification whenever you are asked. What is the legal standing on this? Please note that question has nothing to do with the security zones, where I’m assuming the rules are different.

JH: If an officer simply approaches you on the street, you do not have to speak to him/her (I will use him from this point forward). If he is detaining you for a specific reason, he should inform you as to the reasons for the detention. You do not have an obligation to speak with him. In circumstances where you are driving, you must produce valid identification and insurance or you could receive a ticket. Lack of identification is not justification for a search. An officer needs reasonable and probable grounds (hereinafter RPG) to believe a criminal offence has been committed to arrest or search an individual. If I am walking down the street or sitting on a bench and an officer asks me my name and what I'm doing there, I would choose not to answer and ask him why he is questioning me. I would not have to provide him with my identification. A person not driving a vehicle does not have to carry identification. An officer would not be allowed to detain nor search an individual who does not provide identification. You are allowed to turn and walk away if you are not lawfully being detained or arrested. Now this does not necessarily mean that a police officer won't search an individual anyway but it would not be a legal action.

BD:In Summits and gatherings such as this in the past, some photographers were forced to delete photos or had footage confiscated by authorities. Under Canadian Law, would this be permissible? Would they need a warrant in order to confiscate footage or force deletion of photos?

JH:I have been informed in the past about officers on a scene taking away cameras or phones and deleting images taken by witnesses. This is not allowed but appears to be somewhat common. An officer would not be allowed to confiscate your camera or force you to delete photos unless it somehow was obstructing them in their duties (even then it is debateable whether they could take it from you). It'd be hard to think of a scenario where this would be the case. To take your camera, they would need judicial authorization. With the majority of the circumstances I've encountered where photos were deleted by force, the witnesses were less than savoury and it would be hard to prove. The beauty of the Summit is that there are security cameras everywhere right now and even if a camera is taken by an officer (whether legally or illegally), the security footage could be subpoenaed.

BD:Homeless people in the area have been told they need to be off the street by June 21st. Otherwise they will be arrested. Is there a precedent for this? What would the charge be?

JH: A precedent could be during what I believe was the Mel Lastman squeegee era where Mel Lastman, along with Conservative Mike Harris wanted to "clean up" the streets and force the squeegee kids to stop cleaning car windows. The sad reality is that "rounding up" homeless people occurs during many big events throughout the world (I recall hearing about criminals being locked up [or shot] for a month 'before the Rumble in the Jungle bout). Before the Olympics, governments where they are held often try to "clean up the streets temporarily.

I'm unsure what the police would charge homeless people with that would keep them in jail for the week or so around the Summit. They could be charged with loitering or if they are on private property and have been told to leave before they could be charged under the Trespass to Property Act. Unfortunately, those less fortunate sometimes get the short end of the stick and are not treated in the way Canadians should be treated. They might also be searched and arrested for whatever they might have on them that could be illegal.

BD:Do you have any advice for people who are arrested during the summit, and who may read this blog before that happens?

JH:If already arrested, there is no benefit in arguing with the officer. The only place that might get the person is added charges, based on what the officer might feel is appropriate. If you pull away, you might be charged with resisting arrest. If you lie about your name, you might be charged with obstruct. If you shout, you might be charged with causing a disturbance. With the way our laws are currently set up, the police have the power initially. The place to dispute the charge is in court. If you feel your arrest is unlawful, dispute the charge and let the court hear the case.

There are several lawyers willing to assist with those charged during the Summit including myself and my firm; Pinkofskys. Many will provide initial legal assistance for free. When arrested, you have a right to remain silent. You don't have to answer police questions. Speak to a lawyer before even considering whether to speak to the police upon arrest. Make full use of your rights when under arrest. You won't talk your way out of a charge so don't even try.

The great thing about being Canadian is you have a right to speak your mind and not be fearful that you will be arrested or killed for it. Though the G20 is an unnecessary waste of scarce resources and money in today's technologically advanced society, it continues to be held each and every year (though instead of twice a year it is about to change to once a year). It is a great opportunity to let your message be heard by many people throughout the world but doing so in a violent way will only distort your message and bring with it a backlash that does not help your cause. Don't give the police and other security forces a reason to arrest or harm you through its use of distractionary measures (for example, use of the sounds cannons, pepper spray, batons, or any other method). If you find yourself in the unfortunate circumstance of being arrested, stay calm, call a lawyer, and let the court process take its course. If you are arrested or charged, don't hesitate to contact me and I will do my part in assisting anyone arrested during the Summit.

Jeff Hershberg is a lawyer in downtown Toronto and can be reached at 416-428-7360, or www.pinkofskys.com.